People v. Jaquez , 446 P.3d 865 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
May 31, 2018
2018COA76
No. 15CA1081, People v. Jaquez — Constitutional Law — Fifth
Amendment — Right Against Self-Incrimination; Criminal Law
— Pre-Trial Identification
As a matter of first impression, a division of the court of
appeals holds that the admission of statements made during a
one-on-one voice identification procedure not preceded by Miranda
warnings, that the division concludes was a custodial interrogation,
violated the defendant’s Fifth Amendment right against
self-incrimination.
During the custodial interrogation a police agent, without
asking the defendant to repeat the words used by the robber,
induced the defendant to speak the same words as those used by a
robber during a nearby armed robbery. This is in contrast to a
voice exemplar typically used in a voice identification procedure
where the defendant is asked to speak the same words spoken by
the robber. In that case, no Fifth Amendment violation occurs
because the characteristics of a person’s voice are not protected by
the Fifth Amendment.
Here, the words the defendant chose to utter were admitted
and argued by the prosecution as substantive evidence of his guilt.
The division concludes that the admission of this evidence
inculpated the defendant and violated his Fifth Amendment right
against self-incrimination. This error was not harmless beyond a
reasonable doubt, requiring reversal of defendant’s armed robbery
conviction.
The division also concludes that the one-on-one voice
identification procedure was impermissibly suggestive and remands
to the trial court to make further findings on reliability under
Bernal v. People, 44 P.3d 184, 190 (Colo. 2002).
COLORADO COURT OF APPEALS 2018COA76
Court of Appeals No. 15CA1081
Adams County District Court No. 14CR2305
Honorable John E. Popovich, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Anthony Roger Jaquez,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE BERGER
Hawthorne and Miller*, JJ., concur
Announced May 31, 2018
Cynthia H. Coffman, Attorney General, John T. Lee, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Kamela Maktabi, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1 During a one-on-one voice identification procedure, the victim
of an armed robbery was directed by the police to speak with the
defendant, Anthony Roger Jaquez, while Jaquez was in custody, to
“see if [Jaquez] would say anything to [the victim].” Jaquez was not
warned of his Fifth Amendment rights under Miranda v. Arizona,
384 U.S. 436 (1966), before this encounter.
¶2 Unlike a typical voice identification procedure, Jaquez was not
merely asked to repeat the words heard by the victim during the
robbery. Instead, Jaquez and the victim had a brief conversation
during which Jaquez made statements that were nearly identical to
the statements made by the robber. These statements were
admitted at his criminal trial as substantive evidence of his guilt.
¶3 We must decide whether the admission of those statements
violated Jaquez’s Fifth Amendment right against self-incrimination.
We conclude that the statements should not have been admitted
and further conclude that the error was not constitutionally
harmless. Accordingly, we reverse Jaquez’s conviction and remand
for a new trial.
1
I. Relevant Facts And Procedural History
¶4 The prosecution’s evidence permitted the jury to find the
following facts. At approximately 4:50 a.m., a masked man robbed
an Adams County 7-Eleven and its store clerk at gunpoint. The
robber directed the clerk to give him the money in the cash register,
and told the clerk that as long as he cooperated, “he wouldn’t be
harmed.”
¶5 The clerk gave the robber the money in the cash register —
approximately $107, comprised of ten, five, and one dollar bills.
The robber then left the store. The clerk immediately triggered the
store’s silent alarm and called 911.
¶6 The clerk described the robber as male, wearing a blue
bandana over his face, a white hat, black coat, blue jeans, white
shoes, and white contact lenses.1 When officers arrived on scene,
the clerk also told them that he recognized the voice of the robber
as the voice of a prior customer. He said that when the robber told
him that he would not harm him, the robber drew out, in an
unusual manner, the “h” in the word harm.
1 White contact lenses cover the iris of a person’s eye, thus making
it difficult (if not impossible) to discern the person’s natural eye
color.
2
¶7 Roughly ten minutes after the robber left the 7-Eleven, Jaquez
was walking north up a hill in the Lamplighter Mobile Home Trailer
Park — about six blocks from the 7-Eleven — and came across Paul
Harris sitting on his porch. Harris noticed that Jaquez “seemed a
bit out of breath, a little sweaty, [and] kind of look[ed] a little tired.”
The two started a conversation. Jaquez told Harris that he had
been in an argument with his cousin, and that his cousin had
driven off in their car. Jaquez explained that he lived in Pueblo,
and asked Harris if he knew how to get to the nearest Greyhound
bus station. Harris did not know where the Greyhound station was,
so instead tried to explain how to get to the local bus. However, it
became clear to him that Jaquez did not know the area well enough
to understand the directions Harris was giving.
¶8 Jaquez then asked Harris to give him a ride to the bus stop.
Harris initially refused. Jaquez asked again and told Harris that he
was willing to pay him. Jaquez pulled a wad of cash out of his
pocket, which, according to Harris, contained some ten, five, and
one dollar bills. Harris then reluctantly agreed to give Jaquez a ride
to the bus stop, but permitted Jaquez to first use his cell phone, his
bathroom, and have a drink of water.
3
¶9 The two started walking towards Harris’s car, but they saw a
police car parked on the nearby corner. For reasons not explained
by the record, Harris suggested that they go back to his house and
wait until the police left the area. Jaquez instead suggested that
Harris go pick up his car, and then meet him back at Harris’s
house. Harris agreed. As he walked to his car, he was stopped by
the police officer. After some questioning, Harris told the officer
about his interactions with Jaquez.
¶ 10 Harris then took officers back to his house where Jaquez was
supposed to be waiting. The officers searched Harris’s house and
surrounding yard but did not find Jaquez. While the officers were
speaking with Harris outside his house, Harris noticed Jaquez
crouched between two cars, and pointed him out to officers.
¶ 11 An officer approached Jaquez, but Jaquez walked away. The
officer told Jaquez to stop, but Jaquez started jogging. The officer
ran after Jaquez and, a short distance away, the officer stopped
Jaquez, handcuffed him, and placed him in the backseat of a police
vehicle. At the time, Jaquez was wearing jeans, a black t-shirt, and
white shoes; he had $28.58 in his possession. He did not have a
4
white hat, blue bandana, white contact lenses, black jacket, or a
gun.
¶ 12 Shortly after Jaquez was apprehended, the 7-Eleven clerk was
brought to the mobile home park for a show-up identification. The
clerk was unable to make a visual identification because the robber
had covered his face and disguised the color of his eyes with white
contact lenses.
¶ 13 As an alternative to a visual identification, the police asked the
clerk to speak to Jaquez to see if he could recognize Jaquez’s voice
as the voice of the robber. Importantly, the police did not ask
Jaquez to repeat the words the robber had used during the robbery.
Instead, the officers told the clerk that he did not need to ask
Jaquez any questions, but was told “to speak with [Jaquez] and tell
him that, listen, I was just robbed and I don’t want to see you get in
trouble or jammed up if you didn’t do this and just see if [Jaquez]
would speak with [the clerk].”
¶ 14 At the time, Jaquez was in the backseat of the police vehicle in
handcuffs with the window closest to him rolled down. The clerk
stood next to the car and did exactly what the police told him to do:
he told Jaquez that he did not want to see him get “jammed up” for
5
something he did not do. Jaquez responded by saying he “wouldn’t
do anything like that . . . he wouldn’t harm him.” The clerk
immediately walked to the nearest officer and identified Jaquez as
the robber. Based on this identification, Jaquez was arrested and
charged with aggravated robbery.
¶ 15 Jaquez moved to suppress both the out-of-court voice
identification and the statements he made to the clerk during the
voice identification procedure. After an evidentiary hearing, the
trial court ruled that both would be admissible at trial.
¶ 16 The prosecution also presented testimony by an investigating
officer who testified that in watching the surveillance video at the
7-Eleven, he noticed that the robber had a distinct gait. This
distinct gait drew the officer’s attention to the robber’s feet, which
led him to notice an unusual crease in the robber’s jeans. The
officer further testified that he compared a photo of Jaquez’s jeans
to a still frame from the surveillance video from the 7-Eleven. From
this, he concluded that Jaquez had the same unusual crease in his
jeans as the robber.
¶ 17 Jaquez was convicted as charged. He appeals, arguing that
the trial court erred by (1) admitting the statements made to the
6
clerk during a custodial interrogation in violation his Fifth
Amendment rights; (2) admitting the clerk’s one-on-one voice
identification because the identification procedure was unduly
suggestive and unreliable in violation of his right to due process;
and (3) permitting a police officer to give expert opinion testimony
when he was not disclosed or qualified as an expert under CRE 702
and Crim. P. 16(I)(a)(1)(III).
II. Jaquez’s Statements Were Admitted in Violation of the Fifth
Amendment
¶ 18 Jaquez contends that the trial court violated his Fifth
Amendment right against self-incrimination when it admitted the
statements he made to the clerk during his voice identification. We
agree.
A. Introduction
¶ 19 In its written order addressing the admissibility of Jaquez’s
statements, the trial court found that the clerk’s colloquy with
Jaquez constituted a custodial interrogation under Miranda. It also
found, with record support, that the clerk was acting as an agent of
the state. Nevertheless, the trial court determined that Jaquez’s
statement, “I would not harm you,” made while he was in custody,
7
was admissible because Jaquez was merely asked to repeat the
words as spoken by the robber. As a result, the trial court found
that the statements were nontestimonial and thus not protected by
the Fifth Amendment.
¶ 20 Had Jaquez been directed to say the words said by the robber
for the purposes of the voice identification procedure, the trial
court’s analysis would have been sound and consistent with the
Fifth Amendment. But, the record does not support the factual
underpinning of the court’s analysis.
¶ 21 At trial, the prosecutor introduced the statements both
through the clerk and through a police officer who was standing
nearby. The prosecutor had the following colloquy with the clerk:
Q. And what was the response from the
individual in the police car when you said --
A. He said, “I wouldn’t harm you.”
Q. What was your reaction when you heard
that?
A. It shocked me because it was exactly the
same way, the same words that was [sic] said
to me when I was being robbed.
Q. And what, if anything, did you do?
A. I immediately walked back to the back end
of the police car, and I said, “That’s him.”
8
(Emphasis added.)
¶ 22 The prosecutor asked the officer:
Q. Okay. So you were nearby?
A. Yes.
Q. And could you hear the conversation
between [the clerk] and Mr. Jaquez?
A. Yes.
Q. What did you hear the defendant say?
A. “I don’t mean you any harm.” “I don’t mean
you no harm.” And because of our prior
conversation about that specific verbiage and
how unusual that would be said really in
general, that was one of the main points of the
conversation.
Q. So that was very noticeable to you when
you heard him say that?
A. Yes.
(Emphasis added.)
¶ 23 In its closing argument the prosecution emphasized that
during the voice identification procedure Jaquez volitionally used
the same words as the robber.
B. Miranda
¶ 24 Miranda enforces a suspect’s constitutional right against
self-incrimination by prohibiting the admission of statements
9
procured by custodial interrogation, unless the suspect was first
advised of his rights. Miranda, 384 U.S. at 444. Miranda’s
safeguards “only apply when a suspect is subject to both custody
and interrogation.” Effland v. People, 240 P.3d 868, 873 (Colo.
2010).
¶ 25 It is uncontested that Jaquez was in custody at the time of the
voice identification. The Attorney General contends, however, that
either (1) there was no interrogation; or (2) Jaquez’s statements
were nothing more than a voice exemplar used to identify him,
which normally would not constitute a testimonial statement
protected by the Fifth Amendment. We address both contentions in
turn.
1. The Clerk was an Agent of the Police
¶ 26 We first note that there was no challenged interrogation by a
police officer; instead, Jaquez’s statements at issue were made to a
private citizen, the clerk. Therefore, the Fifth Amendment could
only preclude the admission of Jaquez’s statement to the clerk if the
clerk was an agent of the state. People v. Robledo, 832 P.2d 249,
250 (Colo. 1992).
10
¶ 27 “State action has been extended to include civilians acting as
agents of the state in order to prevent law enforcement officials from
circumventing the Miranda requirements by directing a third party
to act on their behalf.” Id. “The test as to whether a private citizen
has acted as an agent of the police for purposes of criminal
investigation is whether the person ‘in light of all the circumstances
of the case, must be regarded as having acted as an “instrument” or
agent of the state.’” People v. Lopez, 946 P.2d 478, 481 (Colo. App.
1997) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 487
(1971)).
¶ 28 The trial court found that the clerk was an agent of the state
because he was acting at the specific direction of law enforcement
officials. The Attorney General does not contend that this finding
was clearly erroneous, a concession that is well supported by the
record. The clerk only spoke with Jaquez at the direction and
request of the police. The police told him what to say, and they
stood nearby and listened to Jaquez’s response.
¶ 29 “Our role as an appellate court is to review the record to
determine whether the trial court’s findings of fact are adequately
supported by competent evidence and whether the court applied the
11
correct legal standard to these findings in resolving the issue before
it.” Robledo, 832 P.2d at 251. Under these circumstances, the trial
court correctly found that the clerk was acting as an “instrument”
of the state. See Lopez, 946 P.2d at 481-82.
¶ 30 We next turn to whether the clerk’s interaction with Jaquez
constituted an interrogation within the meaning of the Fifth
Amendment.
2. The Clerk’s Colloquy with Jaquez Constituted an Interrogation
¶ 31 A suspect’s statement is in response to interrogation if he was
“subjected to either express questioning or its functional
equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980).
Interrogation includes “any words or actions on the part of the
police [or their agent] . . . that the police should know are
reasonably likely to elicit an incriminating response.” Id. at 301.
“The latter portion of this definition focuses primarily upon the
perceptions of the suspect, rather than the intent of the police.” Id.¶ 32 Whether a custodial interrogation occurred is a mixed
question of fact and law. People v. Barraza, 2013 CO 20, ¶ 15.
While we defer to the trial court’s findings of historical fact and will
not overturn them if they are supported by the record, “we review de
12
novo the legal question whether those facts, taken together,
establish that custodial interrogation occurred.” Id.¶ 33 The trial court found that the interaction between the clerk
and Jaquez was an interrogation for the purposes of Miranda. This
conclusion is supported by the record. See People v. Wood, 135
P.3d 744, 751 (Colo. 2006). The evidence presented at the
suppression hearing indicated that officers directed the clerk to
speak to Jaquez. They told the clerk to “just see if [Jaquez] would
talk to [him].” The police instructed the clerk to tell Jaquez that he
did not want Jaquez to get in trouble if he did nothing wrong —
thus inviting Jaquez to make inculpatory (or exculpatory)
statements. A reasonable officer directing this interaction should
have known that such a statement by the clerk was “reasonably
likely to elicit an incriminating response” from Jaquez. Innis, 446
U.S. at 301.
¶ 34 We thus conclude that the colloquy between the clerk and
Jaquez constituted an interrogation within the meaning of Miranda
and Innis.
13
3. Jaquez’s Statements Were Not a Voice Exemplar
¶ 35 The Attorney General nevertheless argues that even if there
was a custodial interrogation, the admission of Jaquez’s statements
did not violate the Fifth Amendment because the underlying
purpose and use of the interaction was for the clerk to identify
Jaquez’s voice, rather than for the substance of what Jaquez said.
That is, the Attorney General contends that Jaquez’s statements
were merely a voice exemplar.
¶ 36 If this were factually accurate, then the statements by Jaquez
would not be subject to the Fifth Amendment’s protections. “One’s
voice and handwriting are, of course, means of communication. It
by no means follows, however, that every compulsion of an accused
to use his voice or write compels a communication within the cover
of the [Fifth Amendment] privilege.” Gilbert v. California, 388 U.S.
263, 266 (1967). As another division of this court has said, “the
Fifth Amendment does not protect ‘[p]articular characteristics of a
person’s voice,’ such as ‘tone, accents, or speech impediments.’”
People v. Ortega, 2015 COA 38, ¶ 28 (quoting York v.
Commonwealth, 353 S.W.3d 603, 606 (Ky. 2011)).
14
¶ 37 The question, therefore, is this: Were the words spoken by
Jaquez merely a voice exemplar used to identify him, or were they
volitional statements used by the prosecution as substantive
evidence of his guilt? We conclude they were the latter.
¶ 38 Had the police (or the clerk) asked Jaquez to repeat the words
used by the robber, his Fifth Amendment rights would not have
been implicated. See Ortega, ¶ 28. But here, the clerk was directed
to have a conversation with Jaquez to see if he could recognize
Jaquez’s voice. The prosecution then used the very words that
Jaquez chose to utter in response to this interrogation — and the
fact that they were the same words used by the robber — as
substantive evidence of Jaquez’s guilt. Jaquez’s use of the same
words uttered by the robber obviously inculpated him, completely
apart from the clerk’s voice identification.
¶ 39 Because Jaquez was subject to custodial interrogation and
was not given Miranda warnings before being subjected to the
interrogation, the court violated Jaquez’s Fifth Amendment rights
by admitting his statements. Jaquez’s conviction can only be
15
upheld, therefore, if this error was harmless beyond a reasonable
doubt. Chapman v. California, 386 U.S. 18, 24 (1967).2
C. The Erroneous Admission of Jaquez’s Statements Was Not
Constitutionally Harmless
¶ 40 “If a statement obtained in violation of Miranda was admitted
as part of the prosecution’s case-in-chief, over the defendant’s
objection, reversal is required unless the error was harmless beyond
a reasonable doubt.” People v. Frye, 2014 COA 141, ¶ 6 (quoting
People v. Vasquez, 155 P.3d 588, 592 (Colo. App. 2006)). Reversal
is required if “there is a reasonable possibility that the [error] might
have contributed to the conviction.” Chapman, 386 U.S. at 24(quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)). “[T]he
2 The Attorney General also argues that even if there was a
custodial interrogation, Jaquez’s statements were made knowingly
and therefore were admissible at trial. To the extent we understand
this argument, we reject it. Jaquez was not advised of his Fifth
Amendment rights before he made the statements, and “unwarned
custodial statements, whether or not voluntary, are inadmissible in
the ‘government’s direct case, or otherwise, as substantive evidence
of guilt.’” People v. Trujillo, 49 P.3d 316, 321 (Colo. 2002) (quoting
United States v. Havens, 446 U.S. 620, 628 (1980)). The Attorney
General’s argument appears to address the concept that voluntarily
made unwarned statements may be admissible at trial for the
limited purpose of impeaching the defendant. See id. But, the
statements here were admitted in the prosecution’s case-in-chief,
not as impeachment evidence.
16
State bears the burden of proving the error was harmless beyond a
reasonable doubt.” Hagos v. People, 2012 CO 63, ¶ 11.
¶ 41 The evidence of Jaquez’s guilt (other than his statements to
the clerk) consisted of the following:
 the voice identification made by the clerk;
 certain jailhouse phone calls made to Jaquez’s family in
which he apologized for his mistake;
 an officer’s testimony that Jaquez and the robber had the
same gait and crease in their jeans;
 Harris’s testimony regarding his interaction with Jaquez,
including his testimony that he overheard Jaquez say on
the phone that he “had the loot”; and
 Jaquez’s proximity to the scene of the crime.
¶ 42 While the question is close, we conclude that the prosecution
has not met its burden to prove that the erroneous admission of
Jaquez’s statements was harmless beyond a reasonable doubt. See
id.¶ 43 The voice identification and the fact that Jaquez used the
same words as the robber were among the most convincing
evidence of Jaquez’s guilt. Without Jaquez’s statements to bolster
17
the reliability of the identification, it is unclear what weight a finder
of fact would assign to the identification alone.
¶ 44 The Attorney General relies heavily on the jailhouse phone
calls as overwhelming evidence of Jaquez’s guilt. To be sure, the
phone calls could be considered by a jury as incriminating evidence.
But, Jaquez’s statements were ambiguous, at least with respect to
the use of a gun. Thus, we do not place the same significance on
the phone calls as does the Attorney General, at least in the context
of determining whether the constitutional error was harmless
beyond a reasonable doubt.
¶ 45 Contrary to the Attorney General’s suggestion, the fact that
Jaquez was relatively close to the scene of the crime when he was
apprehended actually weighs in Jaquez’s favor. The defense
pointed out at trial that the prosecution did not explain how Jaquez
could have disposed of the jacket, hat, bandana, contacts, gun, and
most (if not all) of the stolen money in a place where neither the
police nor police dogs could find them and still have had enough
time to get to Harris’s home — roughly six blocks from the 7-Eleven
— in ten minutes.
18
¶ 46 In the end, we conclude that although there was substantial
evidence of Jaquez’s guilt, there was not overwhelming evidence.
We therefore cannot conclude that the guilty verdict was “surely
unattributable to the error.” See Blecha v. People, 962 P.2d 931,
942 (Colo. 1998). Accordingly, we reverse Jaquez’s conviction and
remand for a new trial.
III. The Voice Identification Procedure was Impermissibly
Suggestive
¶ 47 Because the issue may arise on a retrial, we address Jaquez’s
contention that the admission of the clerk’s out-of-court voice
identification violated his right to due process because the
identification was impermissibly suggestive and unreliable. We
agree that the identification was impermissibly suggestive, and if
the prosecution again offers the voice identification on retrial
(limited of course by our holding above),3 the trial court must make
findings on the reliability of the identification.
3 On retrial, if the prosecution offers the out-of-court identification,
it may properly ask the clerk questions surrounding the
identification, as well as the fact that the clerk made a positive
identification. However, the prosecution may not introduce the
actual words used by Jaquez during the identification and the fact
that they were the same words as those used by the robber.
19
A. Standard of Review and Applicable Law
¶ 48 We review the constitutionality of pretrial identification
procedures as a mixed question of fact and law. People v. Whittiker,
181 P.3d 264, 272 (Colo. App. 2006). Thus, we defer to the trial
court’s findings of fact, but review its legal conclusions de novo.
Bernal v. People, 44 P.3d 184, 190 (Colo. 2002).
¶ 49 A defendant is denied due process of law if an out-of-court
identification is so impermissibly suggestive and unreliable as to
give rise to a very substantial likelihood of irreparable
misidentification. Id. at 192.
¶ 50 In analyzing whether the admission of an out-of-court
identification violates a defendant’s right to due process, the court
must first determine if the identification was impermissibly
suggestive. Id. at 191. If the defendant has not met this burden,
the inquiry ends there and the identification is admissible. Id.However, if the court finds the identification procedure to be
impermissibly suggestive, “the burden shifts to the People to show
that despite the improper suggestiveness, the identification was
nevertheless reliable under the ‘totality of the circumstances.’” Id.(quoting Manson v. Brathwaite, 432 U.S. 98, 114 (1977)).
20
¶ 51 “One-on-one showup identifications are not per se violative of
due process, although the procedure is viewed with disfavor
because of its strong potential for unnecessary suggestiveness.”
People v. Theus-Roberts, 2015 COA 32, ¶ 8 (citing People v.
Mascarenas, 666 P.2d 101, 109 (Colo. 1983)). “Suggestive
confrontations are disapproved because they increase the likelihood
of misidentification, and unnecessarily suggestive ones are
condemned for the further reason that the increased chance of
misidentification is gratuitous.” Neil v. Biggers, 409 U.S. 188, 198
(1972).
¶ 52 But, if the identification procedure is impermissibly
suggestive, the court must then determine if the identification was
nonetheless sufficiently reliable to permit the jury to consider it. In
making that determination, the court must consider: (1) the
opportunity of the witness to hear the suspect at the time of the
crime; (2) the witness’s degree of attention; (3) the accuracy of the
prior description of the suspect’s voice; (4) the level of certainty
demonstrated at the identification procedure; and (5) the time
between the crime and confrontation. People v. Holden, 703 P.2d
21603, 605 (Colo. App. 1985) (addressing the reliability of voice
identification procedures); see also Bernal, 44 P.3d at 192.
B. Application
¶ 53 At the suppression hearing, the trial court concluded that the
one-on-one voice identification was not impermissibly suggestive.
This conclusion is not supported by the record and is clearly
erroneous. See People v. Singley, 2015 COA 78M, ¶ 25.
¶ 54 During the voice identification Jaquez was handcuffed in the
back of a police vehicle, with multiple police officers standing near
the vehicle. One-on-one showups are viewed with disfavor, even
assuming there are no other corrupting influences. But, when
“[t]he suggestive elements in [the] identification procedure made it
all but inevitable that [the witness] would identify [the defendant]”
the identification procedure was impermissibly suggestive. Foster v.
California, 394 U.S. 440, 443 (1969).
¶ 55 Under the circumstances before us, we conclude that the
one-on-one voice identification was impermissibly suggestive. But,
as noted above, that does not end the inquiry. Instead, the court
must next address the relevant factors under Bernal to determine
22
whether the identification was nonetheless sufficiently reliable, and
thus admissible. 44 P.3d at 192.
¶ 56 Because of its erroneous determination that the one-on-one
show-up identification was not impermissibly suggestive, the trial
court did not address all of the Bernal factors to determine whether
the identification was nevertheless sufficiently reliable to be
presented to the jury. On remand, should the prosecution seek to
present the identification evidence, the court must make
appropriate findings under Bernal and determine if the
identification was sufficiently reliable to allow it to be presented to
the jury. See id.; see also People v. Portley, 857 P.2d 459, 465
(Colo. App. 1992); Holden, 703 P.2d at 605.
IV. Expert Testimony
¶ 57 Jaquez also contends that the trial court erred by allowing a
police officer to testify regarding the specific gait of the robber
without requiring him to be qualified as an expert. We do not know
what evidence will be presented on retrial, and thus do not address
this question. Instead, we only note that should the prosecution
again offer this testimony, the court must analyze its admissibility
23
under the principles set forth in Venalonzo v. People, 2017 CO 9, a
case decided after Jaquez’s trial.
V. Conclusion
¶ 58 The judgment of conviction is reversed and the case is
remanded for a new trial at which Jaquez’s statements to the clerk
during the one-on-one identification procedure must be suppressed.
JUDGE HAWTHORNE and JUDGE MILLER concur.
24